Wednesday, June 11, 2014

Twisted Marriage Arguments

After a state court ruled Pennsylvania's ban on same-sex marriage unconstitutional, Republican Governor Tom Corbett, avoiding inevitable defeat, announced his administration would not appeal the decision.   President of Pro-Life Coalition of Pennsylvania Michael J. McMonagle was not amused and wrote in an op-ed in The Philadelphia Inquirer

Civil marriage exists primarily to provide tangible benefits for children, not emotional benefits for adults. Thus, Corbett and Jones have decided to end the only legal relationship that unites children with their mom and dad. Their decision means that more children will be raised without a mom or a dad, adoption agencies that are faithful to Christian teaching will be forced to close, and there will be increased attacks on the civil and religious rights of citizens who don't support same-sex marriage.

Corbett is wrong to suggest that his decision does not conflict with his Catholic faith. The Catholic Church teaches that marriage is necessarily heterosexual. The conjugal relationship between husband and wife, because it is capable of creating a third person, reflects God's image in the Holy Trinity. Human life is sacred because human beings are created in God's image. Thus, the undermining of God's image through same-sex marriage undermines the sanctity of human life.

McMonagle's argument was a standard, conventional one opposing same-sex marriage.  Standard, conventional- and consistently rejected by the courts.  t is now 19 consecutive victories in court, with no defeats, for the proponents of gay marriage, a run reminiscent of John Wooden's run with the UCLA Bears in NCAA basketball in the 1960s.

Most, if not all, the Judges have cited the 14th Amendment in their ruling. But there is another common thread, one which serves as a rebuke to McMonagle's argument.

In December of last year, the state Supreme Court legalized same-sex marriage in New Mexico (none of whose statutes, it found, specifically prohibited the union) when, Think Progress' Zack Ford commented, the "Court rejected opponents’ claims that limiting marriage to opposite-sex couples somehow promoted 'responsible procreation and childrearing' because procreation 'has never been a condition of marriage under New Mexico law.'”

The same month, another TP blogger reported that federal Judge Robert Shelby struck down Utah's prohibition of same-sex marriage when he observed

the ability to procreate is not “a defining characteristic of conjugal relationships from a legal and constitutional point of view.” Such an argument does not simply “demean[] the dignity” of same-sex couples, it also degenerates “the many opposite-sex couples who are unable to reproduce or who choose not to have children.” Indeed, under Utah’s argument for maintaining marriage discrimination, “a post-menopausal woman or infertile man does not have a fundamental right to marry because she or he does not have the capacity to procreate.”

The following month, a different TP blogger recognized the invalidation by federal Judge Terence Kern of Oklahoma's same-sex marriage ban and explained

The court cites the U.S. Supreme Court’s ruling last term in United States v. Windsor that struck down the Defense of Marriage Act in finding that courts “must be wary of whether ‘defending’ traditional marriage is a guise for impermissible discrimination against same-sex couples.” Kern also rejected a host of arguments about marriage’s relationship to procreation, writing, “same-sex couples are being subjected to a ‘naturally procreative’ requirement to which no other Oklahoma citizens are subjected, including the infertile, the elderly, and those who simply do not wish to ever procreate.”

The following month, federal Judge Orlando Garcia issued an injunction barring the state of Texas from enforcing its anti-gay marriage statute as he

rejected arguments from state Attorney General Greg Abbott’s office, which argued that each state has the right to define marriage as best fits the traditions of its citizens, that traditional marriage best supports the state’s interest in promoting responsible procreation and child rearing, and that same-sex marriage is a recent innovation that cannot be seen as a fundamental right that must be protected by the courts.

The following month (a pattern, perhaps?), the LGBT Bar Association of Greater New York celebrated the decision of Judge Arenda L. Wright to rule unconstitutional Virginia's ban on same sex marriage in which she

rejected the defendants’ arguments that the marriage ban could be justified by tradition, federalism, or the “responsible procreation” and “optimal child rearing” theories. Her analysis is by now quite familiar, following the lines of the recent decisions from Ohio, Utah, Oklahoma and Kentucky. 

And on and on and on. Procreation. Whether the argument is a Roman Catholic view that only marriage between a man and a woman is "capable of creating a third person (and) reflects God's image in the Holy Trinity," one more broadly Christian or a completely secular slant, the view that same-sex marriage cannot be permitted because of the importance to society of procreation has been slain. Notwithstanding other arguments against ssm, this one- unlike Lazarus- deserves to remain dead, at least in the minds of the nation's jurists.

Michael McMonagle's emphasis upon what he assumes is the importance of the marriage institution itself is noteworthy, as is the reasoning of a 23-year-old black college student, who wrote gay marriage supporter Conor Friedersdorf of The Atlantic

I believe that God, who created all people, has His own intention for what marriage is supposed to be. I believe He deliberately created two inherently different, non-interchangeable types of humans so that one of each could permanently join together and start a family. 

This reasoning has been turned on its head. Following the ruling in Kentucky, one of the plaintiff's lawyers, maintaining the marriage relationship extends beyond children, said the state's view "that marriage is designed to perpetuate the species is offensive... Most Kentuckians- on both sides of the issue view marriage as a social partnership, a spiritual bond, a commitment to navigate life together."

"A spiritual bond," she contends. Ironically, a portion of the argument of opponents, the sacredness of marriage, is being used to advance the cause of same-sex marriage.  I am far from convinced of the validity of that point of view, an emphasis on marriage which can be dangerous in the wrong hands (see "Santorum, Rick," as in the video below).   But it's working, and not for the supporters of what previously was termed "traditional values."

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